Citation Nr: 1125049
Decision Date: 07/01/11 Archive Date: 07/14/11
DOCKET NO. 09-18 492 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUE
1. Entitlement to a compensable evaluation for fibromatosis of the right foot (right foot disability).
2. Entitlement to a separate evaluation for a right foot scar residual resulting from a right foot disability.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
L.M. Yasui, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1958 to June 1980.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over this claim is now with the RO in Portland, Oregon.
In his May 2009 substantive appeal, the Veteran requested a personal hearing before a member or members of the Board. In a subsequent letter sent to the Veteran in March 2011, the RO informed the Veteran of a Board hearing scheduled for later that month. He failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2010).
After reviewing the contentions and evidence of record, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision.
The issue of entitlement to a separate evaluation for a right foot scar residual resulting from a right foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
Throughout the period of appeal, the Veteran's service-connected right foot disability has been manifested by mild subjective complaints of pain, but objective examination findings were essentially asymptomatic and do not reflect a moderate injury of the right foot.
CONCLUSION OF LAW
The criteria for entitlement to a compensable disability evaluation for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims.
Service connection was established for a right foot disability in a November 2007 rating decision when a noncompensable evaluation was assigned. Currently, the Veteran has a noncompenable disability rating for his right foot disability.
Although there is not a specific code addressing limitation of motion of the feet, Diagnostic Code 5284 relates to foot injuries. Foot injuries that are moderate warrant a 10 percent disability rating. If moderately severe, a 20 percent disability rating is appropriate. If the foot injury is severe, a maximum 30 percent disability rating is warranted under this code. The note following Diagnostic Code 5284 provides that a 40 percent rating is warranted where there is actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284.
The Board observes that the words "moderate," "moderately severe," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2010).
The VA General Counsel noted in a precedent opinion dated August 14, 1998, that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints, and that other injuries may not affect range of motion. Thus, General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. VAOPGCPREC 9-98.
When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
The Veteran was afforded a VA examination of his right foot in June 2007. There, the Veteran reported that he had no pain associated with his right foot, however, he did report that when he gets flare-ups, he gets a hypersensitive tickle on his foot and he cannot walk on it. At that time, however, the Veteran did not have any symptoms of a flare-up and was pain free. Indeed, upon questioning, the Veteran indicated that he was an avid hiker and that his daily functions have not been changed around the house due to his right foot condition, providing evidence against his own claim. He reported that he did not use any canes, crutches, braces, or assistive devices but that he did have numbness in the great toe bilaterally.
The examiner indicated that the Veteran has normal alignment of the feet when he stands, sits, and squats. In his right foot, he had 18 degrees of dorsiflexion and 45 degrees of plantar flexion, indicating nearly full range of motion. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2010). Also, there was no painful motion or manipulation of the feet and no tenderness to palpation about the arch of the foot or the toes. There was no Achilles tenderness of the right foot and had no other swelling, deformity, discoloration, high arches or claw toes. The Veteran had the ability to stand up on his toes and rock back and forth on his heels. He had full strength for dorsiflexion, plantar flexion, inversion, eversion, bilaterally, with no pain on manipulation. However, deep pressure over the great toe and distally caused mild pain, bilaterally, providing more evidence against this claim.
The Veteran underwent another VA examination of his right foot in April 2009. At that time, the Veteran reported that he had painful stimulus in the right foot and that any textured surface that he stood on gave him a pain sensation like he was walking on coals. However, he also denied any swelling or treatment for his feet. The examiner noted that the Veteran retired from law enforcement in 1989 and since that time, he hikes and canoes. The Veteran reported that he is very active but also stated that he is able to wear only certain types of shoes. He does not wear orthotics due to his right foot disability.
Upon physical examination, the examiner indicated that the Veteran was able function at a very high level. He had full sensation on both feet, except for the left great toe. However, he had the ability to flex and extend the toes with ease. The examiner also noted that the Veteran does not receive treatment for his feet. At that time, he did not have any pain symptoms and could get through all of his daily activities, such as eating, bathing, grooming, toileting, and dressing. The examination report also indicated that while the Veteran avoided walking without shoes and socks, as long as he kept his socks and shoes in order, he could function at a high level. When he had flare-ups, the Veteran had to get off of his feet for short periods of time and it was returned to normal.
The examiner indicated that both feet had normal alignment when the Veteran stood, sat, and squatted. He had no high arches, claw toes, or hammertoes. He had no ligamentous instability on the right ankle to talar tilt or to anterior drawer. He had no malalignments of the Achilles tendon and was nontender to palpation. With standing, sitting, and squatting, there was no painful motion. He had no sensation on the plantar surface of the large toe on the right foot but he had full strength. He also had full range of motion at 25 degrees of dorsiflexion and 45 degrees of plantar flexion, actively and passively, pain free, and upon repetitive motion.
The Board has reviewed the evidence of record including the Veteran's written statements on appeal. His right foot disability has clinically been shown to be essentially asymptomatic. The Board notes, however, that the Veteran has complained of significant pain in statements submitted for the record. However, the medical evidence of record fails to demonstrate objective findings of current moderate symptomatology attributable to the service-connected right foot disability.
As such, a compensable evaluation is not warranted under Diagnostic Code 5284.
In addition, the Board observes that the Court has held that VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).
The Board also acknowledges the Veteran's contentions of having a painful right foot, which he attributes to his service-connected right foot disability. While the Board does not doubt the sincerity of the Veteran's assertions, there is no objective medical evidence which attributes the Veteran's complaints to any identifiable and current disability of the service-connected right foot. Although the Veteran is competent to describe experiencing right foot pain, he is not competent to attribute that pain to his service-connected right foot disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).
Indeed, there is no medical opinion to the contrary. To the extent that the Veteran attributes current right foot pain to his right foot disability, the Board places greater probative value to the clinical findings and opinions by the VA examiners, who have demonstrated expertise and training, over the Veteran's lay contentions in evaluating the extent of his service-connected right foot disability in this case.
In any event, even if the pain were considered to be part of the service-connected foot problem, the Board must find, at best, only a mild problem associated with this disability based on pain. The Board finds that the Veteran's own statements regarding function, and clearly the medical examinations of record, support this finding.
The Board has also considered whether any other diagnostic codes may provide for a higher rating. However, as the Veteran's VA examinations of record have been essentially normal, without any clinically significant impairment of the feet; his right foot disability is in essence, asymptomatic. In addition, a compensable rating for painful motion is not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59. Based upon the findings, the Board observes that there has been no medical evidence of painful motion or other pathology relating to right foot disability sufficient to warrant a compensable rating. Thus, the Board is satisfied that a noncompensable rating is the most favorable rating available for assignment for the Veteran's right foot disability. However, a separate rating for the Veteran's right foot scar residual resulting from a right foot disability is addressed in the Remand section of this decision.
The Board has also reviewed the Veteran's private treatment reports and does not find any additional evidence favorable to the Veteran's claim for a higher evaluation for his right foot disability.
Hence, the Board does not find evidence that the rating assigned for the Veteran's right foot disability should be increased for any other separate period based on the facts found during the entire appeal period under the applicable rating criteria. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation under Diagnostic Code 5284 during any time within the appeal period. As such, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010).
Extraschedular
To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The U.S. Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id.
If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id.
The Board has considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) and determined referral for extraschedular consideration is not warranted in this case.
Ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from a right foot condition. There are no manifestations of the Veteran's right foot disability that have not been contemplated by the rating schedule and an adequate evaluation was assigned based on evidence showing the symptomatology and/or disability (aside from the consideration of a separate evaluation for a scar residual resulting from the right foot disability, which is addressed below). Indeed, the evidence does not reflect that that Veteran was ever hospitalized due to his right foot disability or that it caused marked interference with his employment. Therefore, no referral for extraschedular consideration is required and no further analysis is in order.
Duties to Notify and Assist
The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2007 and December 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In Vazquez-Flores v. Peake, 22 Vet App. 137 (2008), the Court held that more specific notice was necessary for an increased rating claim, to include providing the applicable rating criteria. However, Vazquez-Flores was overruled, in part, eliminating the requirement that such notice must include information about the diagnostic code under which a disability is rated, and notice about the impact of the disability on daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In any event, while not required, the Veteran was provided with the specific language of the diagnostic criteria in post-adjudicatory documents.
The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.
ORDER
Entitlement to a compensable evaluation for a right foot disability is denied.
REMAND
At the outset, the Board acknowledges the RO's development in this case. Nonetheless, a review of the claims file indicates that additional action is needed. Although the Board sincerely regrets the delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.
Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for scars, other than the head, face, or neck, that are deep or cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.). A deep scar, according to Note 2, is one associated with underlying soft tissue damage. Under Note 1, scars in widely separated areas, as on 2 or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25.
Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for scars that are superficial, do not cause limited motion, and cover area of 144 square inches (929 sq. cm). A superficial scar, as defined in Note 2, is one not associated with underlying soft tissue damage. Again, scars in widely separated areas, as on 2 or more extremities or on anterior and posterior surfaces of extremities or the trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. See Note 1 to 38 C.F.R. § 4.118, Diagnostic Code 7802.
Under 38 C.F.R. § 4.118, Diagnostic Code 7803, a 10 percent rating is warranted for a scar that is superficial and unstable. An unstable scar is defined at Note 1 as one where, for any reason, there is frequent loss of covering over the scar. A superficial scar is defined in Note (2) as one not associated with underlying soft tissue damage.
Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. A superficial scar is again defined in Note (1) as one not associated with underlying soft tissue damage.
Under 38 C.F.R. § 4.118, Diagnostic Code 7805, a scar may also be rated based upon limitation of function of the part affected.
In June 2007, the Veteran was afforded a VA examination of his right foot. At that time, the examiner indicated that the Veteran had a scar under his right great toe from the base of the metacarpal phalangeal joint to the mid-arch, which measured two inches. At the mid-arch region, the scar was three-quarter inch in width. The examiner noted that the scar was non-tender and had restriction in the tissues to the soft tissue below it, but it did not have restriction to any tendons. He also indicated that there was no evidence of skin breakdown, infection, or ulceration, and no underlying tissue damage or swelling.
The Veteran underwent another VA examination of his right foot in April 2009. The examiner indicated that the Veteran had no heat, redness, or drainage associated with the scar. It had been stable and had no breakdown. The Veteran reported that his scar was tender versus painful and that he had Tinel's associated with pushing on the scar or tapping on it. While the examiner explained these symptoms, he failed to clearly indicate which foot he was examining. Indeed, the examiner then assessed the Veteran with having a scar on his left foot due to mass removal. He stated that the Veteran's scar was two and half inches on the flexor hallucis longus tendon on the sole of the foot on the left and that the widest portion was three-quarter inch in width. It is apparent from the VA examination report that the examiner did not examine the scar residual on the Veteran's right foot, which is service-connected. The Board notes that the Veteran's left foot is not service-connected at this time. The April 2009 examination report included a scar chart, however, it is unclear which foot was examined on the drawing. As such, since there is no assessment of the Veteran's right foot scar residual, the April 2009 examination is inadequate for VA compensation purposes.
Once VA provides an examination, as it did in this case, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).
Given the inadequacy of the April 2009 VA examination regarding the Veteran's right foot scar residual of a right foot disability, a remand is necessary to determine the nature and severity of this disability, if any.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine the current level of severity of his right foot scar disability, if any. In particular, the examiner should note if the right foot scar is painful on examination.
Any and all studies deemed necessary should be completed. The claims file, along with a copy of this Remand, must be made available to the examiner for review in conjunction with the examination and the examination report should reflect that such review is accomplished.
The examiner should report the current subjective and objective symptoms and manifestations associated with the Veteran's right foot scar disability (if any).
In this regard, if any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include adequate responses to the specific findings requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998).
2. Then, readjudicate the issue of entitlement to a separate evaluation for right foot scar residual of a right foot disability, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision, with respect to this claim, remains adverse to the Veteran, he and his representative, if any, should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs